Financial Sector (Collection of Data) (reporting standard) determination No. 58 of 2008
EXPLANATORY STATEMENT
Prepared by the Australian Prudential Regulation Authority (APRA)
Financial Sector (Collection of Data) Act 2001 (the Act), paragraph 13(1)(a)
Acts Interpretation Act 1901, subsection 33(3)
Under paragraph 13(1)(a) of the Act, APRA may, by writing, determine reporting
standards with which financial sector entities must comply. Such standards relate to
reporting financial or accounting data and other information regarding the business or
activities of the entities. Subsection 33(3) of the Acts Interpretation Act 1901
provides that where an Act confers a power to issue an instrument the power shall,
unless the contrary intention appears, be construed as including a power exercisable in
the like manner and subject to the like conditions (if any) to vary any such
instrument.
Financial Sector (Collection of Data) (reporting standard) determination No. 58 of 2008 (the instrument) varies Reporting Standard SRS 350.0 (2005) Trustee Statement (the Standard). Form SRF 350.0: Trustee Statement – 300 Series (Form SRF 350.0) and Reporting Form SRF 350 Trustee Statement Instruction Guide (the Instruction Guide) form part of the Standard.
The instrument shall take effect on the day after the date of registration on the Federal Register of Legislative Instruments.
- Background
Form SRF 350.0 currently requires trustees to report all instances of non-compliance, as opposed to only significant instances of non-compliance.
Section 29JA of the Superannuation Industry (Supervision) Act 1993 (SIS Act) imposes an obligation on RSE licensees to report breaches of licence conditions to APRA. It is a condition imposed on all RSE licences, under paragraph 29E(1)(a) of the SIS Act, that the RSE licensee comply with the ‘RSE licensee law’. ‘RSE licensee law’ means:
(a) the Act;
(b) the SIS Act or the Superannuation Industry (Supervision) Regulations 1994 (SIS Regulations);
(c) the Financial Institutions Supervisory Levies Collection Act 1998;
(d) the provisions of the Corporations Act 2001 listed in a subparagraph of paragraph (b) of the definition of ‘regulatory provision’ in section 38A of the SIS Act or specified in the SIS Regulations made for the purposes of subparagraph (b)(xvi) of that definition, as applying in relation to superannuation interests; and
(e) any other provisions of any other law of the Commonwealth specified in regulations made for the purposes of this paragraph.
The Financial Sector Legislation Amendment (Simplifying Regulation and Review) Act 2007 amended subsection 29JA(1) of the SIS Act so that only significant breaches of RSE licensee law are required to be reported to APRA.[1] This has resulted in an inconsistency between the current requirements of the Standard and the breach reporting requirements contained in section 29JA of the SIS Act.
2. Purpose of the instrument
The purpose of the instrument is to vary the Standard in order to:
- clarify how certain parts of Form SRF 350.0 should be completed;
- remove obsolete legislative provisions from Form SRF 350.0;
- correct incorrect referencing in the Instruction Guide; and
- require trustees to only report instances of non-compliance with RSE licensee law that are significant.
3. Operation of instrument
Variation to Form SRF 350.0
Items 1 and 2 of the instrument clarify that items 3.2 and 5.2 in Form SRF 260.0 are only required to be completed by trustees who have answered ‘N’ at items 3.1 and 5.1 respectively.
Item 3 of the instrument removes sections 1012G(3) and 1012G(3A) of the Corporations Act 2001 from the table. The removal of these sections is based on advice from ASIC that this information is not necessary to meet ASIC’s regulatory objectives.
Variation to the Instruction Guide
Items 4, 5 and 7 of the instrument remove incorrect references to ‘SRF 260.0’ and replace them with references to ‘SRF 350.0’.
Item 6 inserts a paragraph headed ‘Breach reporting and SRF 350.0’ into the section ‘General guidance for completion of SRF 350.0 Trustee Statement’ to make it clear that trustees are to attest to non-compliance within Form SRF 350.0 for significant breaches as defined in section 29JA of the SIS Act only.
4. Consultation
There has been no consultation with industry in relation to the changes effected by this instrument. Consultation was considered unnecessary as the changes to compliance reporting ensure consistency between APRA’s reporting framework and broader legislative requirements and reduce the reporting obligations for entities.
[1] The amendments to section 29JA of the SIS Act commenced on 1 January 2008.